# Petition for Writ of Certiorari — Platt v. Indiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1187

## Text

Serres Court, 0.8.

(1) FILED
9613856 FEB 2 4 1997
Case No.:

IN THRRICE OF THE CLERK
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996

ALTON PLATT, LAUREN WRIGHT, CARLENE SMITH,
KENNETH HURT and JIHAD MUHAMMAD, on their own behalf
and on behalf of all others similarly situated.

Petitioners
V.

THE STATE OF INDIANA, EVAN BAYH, individually and in his
capacity as Governor of Indiana, THE CONSOLIDATED CITY
OF INDIANAPOLIS and COUNTY OF MARION, STEPHEN

GOLDSMITH, individually and in his capacity as Mayor of the
Consolidated City and County of Indianapolis and Marion, THE
CITY-COUNTY COUNCIL OF THE CONSOLIDATED CITY
OF INDIANAPOLIS AND COUNTY OF MARION, individually,
and in their capacities as members of the City-County Council of the
Consolidated City and County of Indianapolis and Marion,
THE MUNICIPAL COURT OF MARION COUNTY, THE
SUPERIOR COURT OF MARION COUNTY, THE MARION
COUNTY PUBLIC DEFENDER AGENCY, and THE MARION
COUNTY PUBLIC DEFENDER BOARD, Respondents.

ON PETITION FOR WRIT OF CERTIORARI
TO THE INDIANA COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

Stephen Laudig, Indiana Supreme Court Id. 8802-49
156 East Market St. #600

Indianapolis, IN 46204

Tel 317-637-6071

QUESTION PRESENTED FOR REVIEW

1. Do the Petitioners, who are indigent Accusedcs, state a
civil cause of action to enforce, in a civil rights proceeding for
injunctive relief prior to judgment in the criminal proceeding, their

Sixth Amendment right to effective assistance of counsel in the

preparation of their defense?

ae

LIST OF ALL PARTIES TO THE PROCEEDINGS

The names of all the parties to the proceedings in the
Supreme Court of Indiana are included in the caption. In compliance
with Rule 29 it is noted that there are no parent companies or

subsidianes of any corporations involved in this matter.

ill

TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW ae
LIST OF ALL PARTIES TO THE PROCEEDINGS 11
TABLE OF CONTENTS ............... 9 .
TABLE OF AUTHORITIES ....... eae

OPINIONS BELOW .......

nN

BASIS FOR JURISDICTION

N

CONSTITUTIONAL PROVISIONS AND STATUTES ....... 3
STATEMENT OF THECASE ........... Ferrie ce

REASONS FOR GRANTING THE WRIT ....

I oy hg oss ce ee A ek es

TABLE OF AUTHORITIES

Cases:

Amold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (Ark. 1991) .. 16

Dubinion v. State, 600 N.E.2d 136, 138 (Ind. App. 1992) ..... 12

Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct 792

COE AG ee ee Oe 11
Johnson v, Zerbst, 304 U.S. 458, 82 L Ed 1461, 58 S.Ct. 1019,

CR iia ed oho eae 1]
Kimmelman v. Morrison, 477 U.S. 365, (1986) ............. 14

Luckey v. Harris, 860 F.2d 1012 (11" Cir. 1988), cert. den. 495
U.S. 957, 116 S.Ct. 2562 (1990) later Luckey v. Miller, 976 F. 2d

OFF Ta OD oo sci ee ee ee ee 13
Mann v. Richardson, 397 U.S. 759, 25 L.Ed.2d 763, 90 S.Ct. 1441
RW PME eae alen aa Le weer ag ct ere aaah a re a 1]
McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974) ......... 15
Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602
Sa, OE ee ire nermarY aia raat oN A rer a) SN eRe ces ep a 15
Platt v. State of Indiana, 664 N.E.2d 357 COE ics oy hae 2
Smith v. State, 511 N.E.2d 1042 STE. ut eee ek ee 12
State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (Kan.
FOP 05 SOE Ae ene Mt ee eae 16
State v. Peart, 621 So.2d 780 (La. _c ) Sean MPa hiya Rea nebo 15

State v. Robinson, 123 N.H. 665, 465 A.2d 1214 (N.H. 1983) . 16

Vv

|

Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct

RI 9.955 ocd SE eee 11-13
A

Wallace v. Kern, 392 F. Supp. 834 (E.D.N.Y 1972) rev’d on

abstention grounds, 482 F.2d 621 Le ae < ) a ees 13

Constitutional Provisions:

Fifth Amendment to the United States Constitution ........__. 3

Fourteenth Amendment to the United States Constitution ...__. 3

Sixth Amendment to the United States Constitution... . . Pra

Statutes and Rules:

sl tein Ah nd EOE CRE Pn Line Mic, Faese coe ia heck r

ivati , 80 Journal of
Criminal Law & Criminology No. 3 673 (1989)

vi

The Crisis In Indigent Criminal Defense, 44 Ark. L.R. 235 (1991)

Conaioional Right so tite Aaliea a ga 13 —

Const. L., GRE400RP os se cc eee . 16

Competent Representation and Proposals for Reform, 29 Boston

Comoge L.R. 531 (8900) |... eke 16

} ; PIR EC hak hte NST ys 16

oy eee eee I er ee re a ei yr EY 16

Improve Indigent Defense Services, 101 Yale L. J. 481(1991) . 15

Vii

Case No.:
IN THE
SUPREME COURT OF THE UNITED STATES

ALTON PLATT, LAUREN WRIGHT, CARLENE SMITH,
KENNETH HURT
and JIHAD MUHAMMAD, on their own behalf and on behalf of all
others similarly situated.

Petitioners
V.

THE STATE OF INDIANA, EVAN BAYH, individually and in his
capacity as Governor of Indiana, THE CONSOLIDATED CITY
OF INDIANAPOLIS and COUNTY OF MARION, STEPHEN

GOLDSMITH, individually and in his capacity as Mayor of the
Consolidated City and County of Indianapolis and Marion, THE
CITY-COUNTY COUNCIL OF THE CONSOLIDATED CITY

OF INDIANAPOLIS AND COUNTY OF MARION, individually,

and in their capacities as members of the City-County Council of the
Consolidated City and County of Indianapolis and Manion, THE

MUNICIPAL COURT OF MARION COUNTY, THE SUPERIOR

COURT OF MARION COUNTY, THE MARION COUNTY
PUBLIC DEFENDER AGENCY, and THE MARION COUNTY
PUBLIC DEFENDER BOARD,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI
TO THE
INDIANA COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

Petitioners Alton Platt, Lauren Wright, Carlene Smith,
Kenneth Hurt and Jihad Muhammad respectfully seek a writ of
certioran to review the decision of the Indiana Court of Appeals in
this case.

OPINIONS BELOW

The opinion of the Indiana Court of Appeals is published in
Platt v. State of Indiana, 664 N.E.2d 357 (Ind. App. 1996) and is
reproduced in the Appendix beginning at page 1. The ruling
granting the motion to dismiss the Third Amended Complaint by the
Trial Court is reproduced in the Appendix beginning at page

BASIS FOR JURISDICTION

The petition for a writ of certiorari seeks review of the
Indiana Court of Appeals decision and the decision of the Indiana
Supreme Court to not accept transfer of the Petitioners’ Petition to
Transfer. The decision of the Indiana Supreme Court of 26
November 1996 to not accept transfer makes the Indiana Court of
Appeals judgment final.

Jurisdiction is conferred upon the United States Supreme

Court by 28 U.S.C. §1257.

CONSTITUTIONAL PROVISIONS AND STATUTES

The Sixth Amendment to the United States Constitution
States, in its pertinent part, that:
In all criminal prosecutions, the
accused shall enjoy the right. . . to
have the assistance of counsel for his
defense.
The Fifth Amendment to the United States Constitution,
States, in its pertinent part, that:
No person shall be . . . deprived of
life, liberty, or property, without due
process of law;
The Fourteenth Amendment to the United States
Constitution, states, in its pertinent part, that:
No state shall make or enforce any
law which shall . . . deny to any
person within its jurisdiction the equal
protection of the laws.
STATEMENT OF THE CASE
This is a class action brought under, among other statutes,
42 U.S.C. 1983 by Petitioner Alton Platt and other Petitioners. The
suit alleged the following.

All petitioners are indigent persons accused of having

3

committed crimes and all have court appointed counsel. Mr. Platt
was arrested on January 13, 1991 and charged with having
committed felonies. He was unable to make bond. The Marion
County (Indianapolis) Indiana Superior Court appointed counsel to
represent him on January 15, 1991. On that date Platt met his
appointed counsel for the first time. They communicated for less
than sixty (60) seconds Over the next nine (9) months Platt had
three (3) communications with counsel. Each lasted less than sixty
(60) seconds. Counsel refused to accept Platt's collect phone calls
from jail, did not answer his letters and never visited him in jail prior
to the filing of the complaint in this suit. Counsel did not discuss the
case with Platt and did not interview any potential witnesses or
prepare any possible defenses to the charge. There was no
investigation and no pretrial motions. No effective defense was
prepared. The other named plaintiffs were all charged with felonies
either in Superior Court or Municipal Court and had similar
experiences with their appointed counsel.

In Marion County more than eighty percent (80%) of all

persons charged with crimes in the Criminal Court, more than

4

10,000 persons charged with crimes in the Marion County

Municipal Court (which handles lesser felonies and misdemeanors),
and, more than 2,500 juveniles charged in the Juvenile Division have
counsel appointed for their defense. Counsel representing indigent
accuseds do not satisfy the minimum constitutional obligations of
providing adequate defense to indigent criminal defendants and
juveniles. Each Judge hires private attorneys to provide legal
representation for indigent accuseds. They are paid out of the
Court's budget. The decision on whether to hire a particular
attorney as a public defender is based upon that attorney's personal,
or partisan, relationship with the judge. Counsel is hired on a
political party basis. They receive clients on a rotating basis. There
is no upper limit on the number of cases. Compensation does not
vary with the number of cases assigned, or amount of time and
effort expended. Counsel are "part-time" and have private civil and
criminal law practices which compete for their time and attention.
There are no paid staff investigators, secretaries, or paralegals.
Counsel fees are inadequate, and along with the lack of defense

services, prevent effective representation to indigent defendants.

5

Counsel have insufficient time to consult with their clients. The

- relationship between the Judges and counsel is one of employer-
employee and creates both an appearance and an actual conflict of
interest in that appointed counsel must vigorously represent their
clients in front of the same person who can fire them. There is a
direct and immediate disincentive to do anything that would
displease a Judge. The Municipal Court Presiding Judge hires and
fires the "Chief Public Defenders” and their Deputies and has
engaged in partisan politically-based patronage hiring and firing
practices for attorneys and staff.

The Petitioners alleged in their complaints that there was
intentional underfunding of indigent defense to the extent that an
adequate assistance of counsel, prior to conviction, was not
provided. The cumulative effect of the inadequacies in the provision
of indigent criminal defense in Marion County constitutes a systemic
failure to satisfy minimum constitutional standards of the Fifth,
Sixth and Fourteenth Amendments.

The Petitioners further alleged a gross disparity between the

resources for the prosecution of, as compared to the defense, of

6

indigent accuseds which precludes a fair trial. The present condition
of the indigent defense system has existed for riore than twenty (20)
years and has been studied and reported upon at least six (6) times
since 1976. Each of the studies was referred to in the complaint and
the studies findings formed part of the factual allegations of
systemic ineffective assistance of counsel and the need for
prevention.

Those reports are: 1) An Analysis of Indigent Defense
Services In Marion County (Indianapolis) Indiana; ("1976 Report");
2) Report No. 80-8, The Public Defender System of Marion
County, Indiana: Current and Projected Costs; ("1980 Report"); 3)
Report to Marion County Municipal Court Nominating
Commission, RE: Municipal Court Public Defender Office;
Evaluation of Partial State Funding for Public Defender Services in
Indiana ("1985 Report"); 4) 1986 Statewide Study of Public
Defender Services ("1986 Report"); 5) Marion County (IN)
Municipal Court Public Defender and Probation Departments: First
Report of Court Management Review Phase II ("1989 Report");

and, 6) Report of the Commission on Public Defenders of the

7

Indianapolis Bar Association ("1991 Report").

The 1976 Report revealed that the 1976 public defender
system was, in all significant details, the same as it was at the time
this action was filed. The 1980 Report found that the "Marion
County system [fell] short of most of the ABA standards" relating
to providing criminal defense services." Appointed counsel lacked
professional independence; support services and training; adequate
funding; and had a politics-ridden selection of chief defender and
staff process. The 1985 Report noted that there was a lack of
continuity of counsel; a lack of independence from the judiciary; a
failure to interview clients prior to trial; inadequate preparation of
cases for trial; insufficient supervision, training and support services:
and inadequate funding. The 1986 Report concluded there was a
lack of public defender independence from the judiciary; a lack of
support services and money for investigation and experts; and, a
lack of controls on the caseloads of individuals. The 1989 Report
noted that the Municipal Court Public Defender office lacked most
of the characteristics of an effective organization; in "most instances
the public defender will not see a defendant's file after the first trial

8

iia

hearing until a few minutes before the rescheduled trial date”; that
"many . . . clients become lost in the system unless they contacted
the public defender's office by collect call": and that most appointed
counsel left an “impression of apathy, and not infrequently antipathy
to defendants." The 1991 Report by the Indianapolis Bar
Association “arrived at a unanimous conclusion that the present
fragmented system of delivery of public defender services to the
indigent in Marion County is seriously deficient": "the caseloads of
public defenders clearly indicate that indigent defense services are
seriously underfunded"; and, that "public defenders presently
handle two-to-three times the number of cases recommended in
national standards for public defender caseloads."
Tnal Court

On April 10, 1992 the Petitioners filed a Class Action
complaint. The Petitioners filed a Second Amended Complaint on
September 2, 1993 which alleged all of the allegations contained in
the “Statement of the Case Portion” of this Petition for Certiorari.
The Petitioners alleged systematic violations of their Sixth

Amendment right to effective assistance of counsel; Fifth

9

Amendment Due Process of law; and their Fourteenth Amendment
night to equal protection of the law in their complaint. Petitioners
filed a Motion for Partial Summary Judgment which included the
reports neted above. The Defendants move to Dismiss the Second
Amended Complaint for failure to state a claim upon which relief
could be granted. The Trial Court entered an order granting the
Motions to Dismiss for failure to state a cause of action.
Indiana Court of Appeals

On 16 April 1996 the Indiana Court of Appeals, Fifth
District, upheld the Trial Court’s dismissal, holding that under no
set of facts could Petitioners be granted relief. The Court of Appeals
held that “a violation of a Sixth Amendment nght will arise only
after a defendant has shown he was prejudiced by an unfair trial”
(App. 6) that the Petitioners’ claims were “not reviewable under the
Sixth Amendment.” (App. 6).
Indiana Supreme Court

On 26 November 1996, in a one sentence Opinion, the
Indiana Supreme Court denied transfer. Thus affirming the Court of

Appeals decision. This petition for certiorari is being filed less than

10

ninety (90) days after that ruling. (S.C. Rule 13(1)) The 90" day is
25 February 1997.
REASONS FOR GRANTING THE WRIT

1. A state court of last resort has decided an important
States Court of Appeal (S.C. Rule 10(b))

The core federal constitutional claim in this litigation is the
Sixth, Fifth, and Fourteenth Amendment nights of indigent accused
to effective assistance of counsel prior to conviction and avoid being
subjected to an unfair trial and conviction and then establish, post-
conviction, that appointed counsel had not played “the role
necessary to ensure that the trial is fair." Strickland v. Washington,
466 U.S. 668, 80 L.Ed.2d 674, 685, 104 S.Ct 2052 (1988).

The right to counsel is "one of the safeguards deemed
necessary to insure fundamental rights of life and liberty." Johnson
v. Zerbst, 304 U.S. 458, 82 L Ed 1461, 58 S.Ct. 1019, (1937), at
462. It is the right to effective counsel. Mann vy, Richardson, 397
U.S. 759, 25 L.Ed.2d 763, 90 S.Ct. 1441 (1970): Gideon v.

Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct 792 (1963).

1]

Stnckland created "factual presumption" for accuseds
claiming ineffective assistance of counsel to overcome in order to
obtain a reversal of a conviction. Preventing, rather than remedying,
ineffective assistance of counsel is an important federal question
because of the loss of significant lost during the period of time after
conviction and before reversal. Additionally a justice system must be
seen to be fair for it to have the public’s confidence..

The symptoms indicate systemic failure and have been noted
to previously exist in Marion County Indiana. Smith v. State, 511
N.E.2d 1042 (1987) (“The reversal of this conviction may not have
come about so much from an individual performance as from a flaw
in the system maintained to provide legal counsel to those unable to
meet the expense on their own.”); Dubinion v. State, 600 N.E.2d
136, 138 (Ind. App. 1992) ("case vividly demonstrates the need for
a dramatic and substantial revision of the Marion County Municipal
Court system including most prominently the Municipal Court
Public Defender system.") The trial court noted how widespread the
crisis in indigent defense is nationwide. The Trial Court held in its

July 8, 1994 entry at fn 2, that:

12

The inadequacy of the public defender
system in Marion County, as alleged
in the Complaint, is not a problem
unique to Marion County
Before reversing a conviction under Strickland a court must
be convinced that:
1) a deficient performance by counsel;

2) caused a sufficiently great prejudice to the
defendant. Strickland at 694.

The Petitioners have an important federal right to prevent
ineffective assistance of counsel before conviction because in
addition to the above there is a strong presumption that trial counsel
was adequate, that any errors which were made were conscious
ones, and that the trial counsel's conduct was constitutionally
adequate. Strickland at 690-91. The current standard is to
determine, after conviction, whether there was constitutionally
deficient ineffective assistance of counsel.

Luckey v. Harris, 860 F.2d 1012 (11 Cir. 1988), cert. den.
495 U.S. 957, 110 S.Ct. 2562 (1990) later Luckey v. Miller, 976 F.

2d 673 (11" Cir. 1992) recognized a civil cause of action to prevent

ineffective assistance of counsel. Similarly Wallace v. Kern, 392 F.

13

Supp. 834 (E.D.N.Y 1972) rev’d on abstention grounds, 482 F.2d

621 (2d Cir. 1973) found that preconviction claims of ineffective
assistance of counsel could be addressed on a class-action basis
prior to conviction.

The Indiana Court of Appeals erroneously construed
Stnckland as meaning there is no civil right to prevent a Strickland
violation from inevitably occurring.

Hence the Platt opinion directly conflicts with Luckey and
Wallace.

2. A state court has decided an important question of federal
law that has not been, but should be, settled by this Court, or has

The Constitution's guarantee of effective assistance of

counsel to indigent accuseds cannot be satisfied by a mere formal

appointment. Avery v. Alabama, 308 U.S. 444, 446, (1940).
Kimmelman v, Morrison, 477 U.S. 365, (1986). "The right to

counsel is a fundamental right of criminal defendants; it assures the

fairness, and thus the legitimacy, of our adversary system." Id, at

14

374, and is the "right to effective assistance of counsel.” Ibid. at
377. The "right to effective assistance of counsel is personal to the
defendant, and is explicitly tied to a fundamentally fair trial - a trial
in which the determination of guilt or innocence is "just" and
"reliable." Ibid. (J. Powell, concurring) at 392-393.

When effective assistance of counsel is not provided the
entire adversary system itself to suffers. McQueen v. Swenson, 498
F.2d 207 (8th Cir. 1974). Inadequate representation is "not a
product of an adversary [process], but a flaw in the adversary
process." [bid. at 218-19.

The crisis in providing adequate assistance of counsel, prior
to conviction, is not restricted to Marion County but is a nationwide
problem of long standing and it is worsening. Piecemeal after the

fact remedy of reversing convictions is ineffective when the problem

is the system. See State v. Peart, 621 So.2d 780 (La. 1993); The
Crisis In Indigent Criminal Defense, 44 Ark. L.R. 235 (1991); A
Noble Ideal Whose Time Has Come, 18 Memphis State U. L.R.
223. (1991); [Un]Luckey v, Miller: The Case for A Structural
Injunction to Improve Indigent Defense Services, 101 Yale L. J.

15

481 (1991); Gideon v. Wainwnght Revisited, 10 Pace L.R. Review
327 (1990); The Right to Effective Counsel:, 16 T. Marshall L.R.
225 (1990); Keeping Gideon from Being Blown Away: Prospective
Challenges to Inadequate Representation May be Our Best Hope, 4
Criminal Justice 10 (Winter 1990); Resource Deprivation and the
Right to Counsel, 80 Journal of Criminal Law & Criminology No. 3
673 (1989); We Are Still Not Defending the Poor Properly,
Criminal Justice Fall 1989; The Relationship of the Court and
Defense Counsel: The Impact on Competent Representation and
Proposals for Reform, 29 Boston College L.R. 531 (1988); The

Gideon Has No Clothes: The E —
Constitutional Right to Effective Assistance of Counsel, 13 Hastings
Const. L.Q. 625 (1986); Why We are Not Defending the Poor
Properly, Criminal Justice Fall 1986; State ex rel. Stephan v, Smith,
242 Kan. 336, 747 P.2d 816 (Kan. 1987); Unequal Justice Under
Law, An Analysis of Indigents in the Criminal Justice System —
The Indiana Experience , 6 W. New Eng. L. Rev 263 (1983); State
v. Robinson, 123 N.H. 665, 465 A.2d 1214 (N.H. 1983); Amold v.
Kemp, 306 Ark. 294, 813 S.W.2d 770 (Ark. 1991).

16

This important federal question of preconviction of effective

assistance of counsel gathers heightened importance in light of the
restrictions on habeas corpus enacted recently.

The Courts, since the governmental officials involved are
officers of the court and the harm effects the judicial system are
uniquely qualified to act and not defer to the executive or legislative
branches for a remedy.

As Chief Justice Burger noted surely "an effective system of
justice is as important to the social, economic and political health of

the country as an adequate system of medical care is to our physical

health." C.J. Burger, Has the Time Come?, 55 F.R.D. 119, 123
(1972).
CONCLUSION

WHEREFORE, Petitioners request this court to grant their
petition for certiorari to the Indiana Court of Appeals and for all
other proper relief.

Respectfully Submitted this 21 February 1997.

re Lows

Stephen Laudig .

17

Indiana Attorney Number 8802-49
Attomey for Petitioners

156 East Market Street #600
Indianapolis, IN 46204

Tel 317-637-6071

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0324%3A1. Public record. Not legal advice.